U.S. Supreme Court to Hear Aereo Case. Why the Ultimate Decision Could Tilt in a Certain Direction

"The Supreme Court has decided that now would be a good time to consider the arguments arising from the Second Circuit’s Aereo decisions to date — so the Supremes have granted the petition for certiorari filed by the broadcaster parties to the Second Circuit case," reports Harry Cole on the CommLaw blog. This is a blog published by the Arlington, Va., communications law firm Fletcher, Heald & Hildreth.

Cole writes: "While this could ordinarily bode well for the broadcasters — after all, if the Supreme Court thought the Second Circuit got it right, they could just deny cert and let the Second Circuit’s action stand — you can probably expect Aereo to claim something of a victory here because … Aereo itself urged the Court to take the case."

Cole continues with this interesting assessment of the case: "First, Justice Alito recused himself from consideration of the cert petition. As is customary, no reason for his recusal was given, nor did the Court’s order disclose whether he would be recused from the merits end of the case — although recusal there would seem more than likely. If he’s out, that would reduce the number of justices hearing the case to eight, giving rise to the possibility of a 4-4 split. In that case the decision of the lower court — i.e., the Second Circuit’s order upholding the denial of a preliminary injunction against Aereo — would remain in place."

Cole also writes that Aereo’s argument for its legality "is based on the Second Circuit’s 2008 Cablevision case in which the Circuit concluded that Cablevision’s Remote Storage-DVR system did not infringe on copyrights held by various program producers whose works were recorded and transmitted through that system."

When the U.S. Supreme Court was deciding whether or not it should hear an appeal of the Cablevision case, it asked the Solicitor General of the U.S. to weigh in with a brief.

Cole then explains: "In May 2009, the Solicitor General weighed in with a recommendation against Supreme Court review. BUT that recommendation was guarded and hedged. In particular, the Solicitor General noted that ‘some aspects of the Second Circuit’s reasoning on the public-performance issue are problematic.’ For example ‘Some language in the [Second Circuit’s] opinion could be read to suggest that a performance is not made available “to the public” unless more than one person is capable of receiving a particular transmission. … Such a construction could threaten to undermine copyright protection in circumstances far beyond those presented here, including with respect to [video-on-demand] services or situations in which a party streams copyrighted material on an individualized basis over the Internet.’

"So, at least in the Solicitor General’s view, Cablevision was not necessarily the most persuasive case on a number of fronts, including its interpretation of the Copyright Act’s Transmit Clause. But interpretation of that clause was absolutely crucial to the Second Circuit’s Aereo decisions, and there the Circuit relied extensively on Cablevision. So if Cablevision is really ‘problematic,’ that may not be a good sign for Aereo.

"Did we mention that the Solicitor General who signed the Cablevision brief — the brief that characterized the Second Circuit’s Cablevision opinion as ‘problematic’ — was (drum roll, please) Elena Kagan?"

Kagan is now an Associate Justice on the Supreme Court. So far she has not said whether she will recuse herself from the case.